dismissed H-1B Case: Physical Therapy

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PUBLICcopy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE: EAC 06 174 54842 Office: VERMONT SERVICE CENTER Date: OCT 04 2007
lNRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § I 1Ol(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision ofthe Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 06 174 54842
Page 2
DISCUSSION: The Director, Vennont Service Center, denied the nonimmigrant visa petition. The matter is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition
will be denied.
The petitioner is a physical therapy clinic. It seeks to employ the beneficiary as a physical therapist.
Accordingly the petitioner endeavors to classify the beneficiary as a nonimmigrant pursuant to section
10I(a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(H)(i)(b).
On September 13, 2006, the director denied the petition determining that the petitioner had not provided the
beneficiary's required certification as a physical therapist in accordance with section 212(a)(5)(C) of the Act.
The director observed that Citizenship and Immigration Services (CIS) had requested evidence that the alien
had received a certificate from an independent credentialing organization; but that the petitioner's response
did not include the required certificate.
The issue before the AAO is whether the petitioner's failure to submit the certification requested by the
director is a basis for denying the instant petition.
Section 212(aX5XC)of the Act provides, in pertinent part:
Uncertified foreign health-care workers. - Subject to subsection (r), any alien who seeks to enter
the United States for the purpose of performing labor as a health-care worker, other than a
physician, is excludable unless the alien presents to the consular officer, or, in the case of an
adjustment of status, the Attorney General, a certificate from the Commission on Graduates of
Foreign Nursing Schools, or a certificate from an equivalent independent credentialing
organization approved by the Attorney General in consultation with the Secretary of Health and
Human Services.
On July 25, 2003, the Department of Homeland Security (DRS) published a final regulation implementing this
section of the Act. The rule establishes that certain nonimmigrant health care workers are required to obtain
certification in accordance with section 2l2(aX5XC) of the Act. On September 22,2003, the Associate Director
for Operations issued a memorandum providing guidance to the fmal regulation and updating the Adjudicator's
Field Manual AD 03-31. Final Regulationon CertificationofForeignHealth Care Workers:A4judicator'sField
Manual UpdateAD 03-31; Memorandum of William R. Yates, Associate Director for Operations, CIS, DHS,
(September 22, 2003) ("Yates Memo"). The Adjudicator's Field Manual was expanded to include a new
chapter at 30.12. The revision of the Adjudicator's Field Manual at 30.12 in pertinent part reads:
(b) Health Care Occupations Requiring Certification. The health care occupations requiring
certification are nurses (licensed practical nurse, licensed vocational nurses, and
registered nurses), physical therapists, occupational therapists, speech-language
pathologists and audiologists, medical technologists (also known as clinical laboratory
scientists), medical technicians (also known as clinical laboratory technicians) and
physician assistants.
EAC 06 174 54842
Page 3
(f) Implementation Dates.
(1) Prior to July 26, 2004, the DRS will admit and approve applications for extension of stay
or change of status for nonimmigrant health care workers without requiring certification.
The temporary admission, extension of stay, or change of status of such a nonimmigrant
will be subject to the following conditions:
(i) The admission, extension of stay, or change of status may not be for a
period longer than I year from the date of the decision, even if the
relevant provision of 8 CFR 214.2 would ordinarily permit the alien's
admission for a longer period;
(ii) The alien must obtain the requisite health care worker certification within
1 year of the date of decision to admit the alien or to extend the alien's
stay or change the alien's status; and
(iii) Any subsequent petition or application to extend the period of the alien's
authorized status or change the alien's status must include proof that the
alien has obtained the health care worker certification if the extension or
stay or change of status is sought for the primary purpose of the alien's
performing labor in an affected health care occupation. If the alien is
adjusting status, all eligibility requirements must be met at the time of
filing the application for adjustment of status. 8 CFR 103.2(b)(l2).
Therefore, a health care worker in one of the affected occupations must
submit evidence of certification at the time the adjustment of status is
filed.
(2) On or after July 26, 2004, if an alien seeks admission to the United States, a change of status,
or an extension of stay, the alien must provide evidence of health care worker certification if
his or her primary purpose for coming to or remaining in the United States is employment in
one of the affected health care occupations. The DHS will then exercise its discretion to
waive the certification requirement only on a case[-]by[-]case basis.
The petitioner submitted the Form 1-129on May 22,2006. On June 3, 2006, the director requested a copy of the
beneficiary's license to practice physical therapy in the State of New York and evidence that the beneficiary had
obtained certification by the Foreign Credentialing Commission on Physical Therapy, Inc. (FCCPT). In an
August 25, 2006 response, counsel for the petitioner provided a copy of the beneficiary's New York State
registration certificate and the beneficiary's New York State license to practice physical therapy. Counsel noted
that the beneficiary had been working hard to pass the exams for FCCPT certification but that the process was not
yet completeand could take some time. Counsel requested that the director withhold the decision until the results
of the FCCPT exam were complete.
EAC 06 17454842
Page 4
On September 13,2006, the director denied the petition determining that the record did not contain the requisite
FCCPT certification and thus did not establish that the beneficiary qualified for classification under section
101(a)(15)(H)(i) ofthe Act.
On appeal, counsel for the petitioner asserts that as credentialing certificates require multiple exams and
requirements an exception should be made for physical therapists because of the shortage of physical therapists.
Counsel contends that a state license to practice physical therapy should be sufficient for H-lB purposes.
In this matter, the director has not waived the certification requirement. As the petitioner has not submitted
the required certificate as required by section 212(a)(5)(C) of the Act, the petition must be denied. The AAO
notes that the issue of the beneficiary's inadmissibility is not within the AAO's jurisdiction. The AAO notes
further that the regulation at 8 C.F.R. § 214.1(a)(3) requires every nonimmigrant alien who applies for
admission to or an extension of stay in the United States to establish that he or she is admissible or that any
ground of inadmissibility has been waived under section 212(d)(3) of the Act.
The burden of proof in this proceeding rests solely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361.
The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.